Citation Nr: 0533614
Decision Date: 12/13/05 Archive Date: 12/30/05
DOCKET NO. 04-19 333 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for hypertension
2. Entitlement to service connection for a heart disorder,
secondary to hypertension.
3. Whether new and material evidence has been received to
reopen a claim for service connection for a herniated lumbar
disc.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1970 to
August 1990.
This case comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from an August 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina, which denied the veteran's petition
to reopen his previously denied claim for service connection
for a herniated lumbar disc. The RO also as denied his
claims for service connection for hypertension and a heart
disorder, secondary to hypertension.
FINDINGS OF FACT
1. The veteran was notified of the evidence needed to
substantiate his claims and apprised of whose responsibility
- his or VA's, it was for obtaining the supporting evidence,
and all relevant evidence necessary for an equitable
disposition of his appeal has been obtained.
2. There is no persuasive medical nexus evidence of record
indicating the veteran developed hypertension during or as a
result of his service in the military.
3. There also is no persuasive medical evidence of record
indicating the veteran's heart disorder is causally or
etiologically related to his military service, including by
way of his hypertension.
4. In an unappealed May 1996 rating decision, the RO denied
the veteran's claim for service connection for a herniated
lumbar disc.
5. The evidence submitted since that May 1996 rating
decision is cumulative of evidence already of record and does
not provide the facts necessary to substantiate this claim.
CONCLUSIONS OF LAW
1. The veteran's hypertension was not incurred or aggravated
during his active military service and may not be presumed to
have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1131, 1137, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309
(2005).
2. The veteran's heart disorder also was not incurred or
aggravated during service and is not proximately due to or
the result of a service-connected disability. 38 U.S.C.A.
§§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309,
3.310 (2004).
3. New and material evidence has not been submitted to
reopen the claim for service connection for a herniated
lumbar disc. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38
C.F.R. §§ 3.104, 3.156, 20.1103 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Procedural Due Process Considerations
The Veterans Claims Assistance Act (VCAA), codified at 38
U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed
into law on November 9, 2000. Implementing regulations were
created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326.
VCAA notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in his or her possession
that pertains to the claim. See Pelegrini v. Principi, 18
Vet. App. 112, 120-121 (2004) (Pelegrini II). This new
"fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1) (2004). Id., at 121.
But according to VA's General Counsel (GC), the Pelegrini II
holding does not require that VCAA notification contain any
specific "magic words." See VAOPGCPREC 7-2004 (July 16,
2004); see also VAOPGCPREC 1-2004 (February 24, 2004).
Pelegrini II also held in part that, VCAA notice, as required
by 38 U.S.C.A. § 5103, to the extent possible, must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ or RO) decision on a claim for
VA benefits.
In the case at hand, the veteran was sent a VCAA letter in
May 2003 explaining the type of evidence (i.e., new and
material) required to support his petition to reopen his
previously denied claim concerning his herniated lumbar disc.
The letter also explained the type of evidence needed to
substantiate his claims for service connection for
hypertension and a secondary heart disorder. As well, the
letter indicated what evidence he was responsible for
obtaining and what VA had done and would do in helping him
obtain supporting evidence. There was no specific mention,
per se, of the "fourth element" discussed in Pelegrini II,
but the letter nonetheless explained that he should identify
and/or submit any supporting evidence. And in Mayfield v.
Nicholson, 19 Vet. App. 103, 128 (2005), the Court held that
requesting additional evidence supportive of the claim rather
than evidence that pertains to the claim does not have the
natural effect of producing prejudice. The burden is on the
claimant in such a situation to show that prejudice actually
exists. Furthermore, as also held in Mayfield, an error,
whether procedural or substantive, is only prejudicial "when
the error affects a substantial right so as to injure an
interest that the statutory or regulatory provision involved
was designed to protect such that the error affects 'the
essential fairness of the [adjudication].'" (quoting
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553
(1984). The content of the VCAA notice therefore
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate the claim and the relative duties of
VA and the claimant to obtain evidence) and of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice).
Note also that the veteran was initially provided VCAA notice
in May 2003, prior to the RO's initial adjudication of his
claims in August 2003. So this complied with the Pelegrini
II requirement that VCAA notice, to the extent possible,
precede the RO's initial adjudication. The May 2003 VCAA
notice also provided the veteran with ample opportunity to
respond before his appeal was certified to the Board. And he
has not otherwise indicated he has any additional relevant
evidence to submit or which needs to be obtained. In
addition, he was provided a hearing before the undersigned
Veterans Law Judge (VLJ) of the Board, wherein the provisions
of the VCAA were again explained. So under these
circumstances, the Board finds that he was afforded "a
meaningful opportunity to participate effectively in the
processing of his claim by VA." See Mayfield, 19 Vet. App.
At 128 (holding that section 5103(a) notice [even if]
provided after initial RO decision can "essentially cure the
error in the timing of notice" so as to "afford a claimant
a meaningful opportunity to participate effectively in the
processing of ... claim by VA") (citing Pelegrini II, 18 Vet.
App. At 122-24).
Consequently, "the record has been fully developed," and
"it is difficult to discern what additional guidance VA
could [provide] to the appellant regarding what further
evidence he should submit to substantiate his claim."
See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
II. Entitlement to Service Connection
A veteran is entitled to service connection for a disability
resulting from a disease or injury incurred in or aggravated
in the line of duty while in the active military, naval, or
air service. See 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303(a). In addition, service connection also
is permissible for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes the disease was incurred in service.
38 C.F.R. § 3.303(d). Certain conditions such as
hypertension and heart disease are chronic, per se, and
therefore will be presumed to have been incurred in service
if manifested to a compensable degree within one year after
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R.
§§ 3.307, 3.309. This presumption, however, is rebuttable by
probative evidence to the contrary.
If there is no evidence of a chronic condition during
service, or an applicable presumptive period, then a showing
of continuity of symptomatology after service is required to
support the claim. See 38 C.F.R. § 3.303(b). Evidence of a
chronic condition must be medical, unless it relates to a
condition to which lay observation is competent. See Savage
v. Gober, 10 Vet. App. 488, 495-498 (1997). If service
connection is established by continuity of symptomatology,
there must be medical evidence that relates a current
condition to that symptomatology. Id.
When a veteran seeks service connection for a disability, due
consideration shall be given to the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by service records, the official history of each
organization in which he served, his military records, and
all pertinent medical and lay evidence. See 38 U.S.C.A. §
1154(a); 38 C.F.R. § 3.303(a).
Service connection also may be granted for a disability that
is proximately due to or the result of a service-connected
condition. When service connection is established for a
secondary condition, the secondary condition is considered as
part of the original condition. 38 C.F.R. § 3.310(a). But
medical evidence is required to show this secondary cause-
and-effect relationship; mere lay opinion will not suffice.
See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995). In
addition, service connection is permitted for aggravation of
a non-service-connected disability caused by a service-
connected condition. See Allen v. Brown, 7 Vet. App. 439,
448
(". . . when aggravation of a veteran's non-service-
connected condition is proximately due to or the result of a
service-connected condition, such veteran shall be
compensated for the degree of disability . . . over and above
the degree of disability existing prior to the
aggravation.").
The veteran's August 1970 Report of Medical History for
purposes of enlistment into the military indicates that he
denied experiencing dizziness, shortness of breath, chest
pain or pressure, high or low blood pressure, or heart
palpitations. The contemporaneous Report of Medical
Examination indicates that a clinical evaluation of his
lungs, chest, heart, and vascular system was normal.
His blood pressure was 130/70.
The veteran began serving on active duty in the military in
November 1970.
In November 1971, the veteran was treated for blunt trauma to
the chest after being hit when a boiler exploded in the
engine room. Physical examination was normal and a chest X-
ray was likewise normal.
A subsequent June 1974 Report of Medical Examination
indicates that clinical evaluation of the veteran's lungs,
chest, heart, and vascular system was normal. His blood
pressure was 128/78 and his chest X-ray was normal.
A July 1980 Report of Medical History shows the veteran
denied experiencing dizziness, shortness of breath, chest
pain or pressure, high or low blood pressure, or heart
palpitations. The contemporaneous Report of Medical
Examination indicates that a clinical evaluation of his
lungs, chest, heart, and vascular system was normal. His
blood pressure was 128/82 and his chest X-ray was normal.
A March 1983 treatment note indicates the veteran complained
of chest pain, worse with exertion and movement. Following
an examination, the diagnosis was costochondritis. His blood
pressure was 132/75 on that occasion.
The veteran's December 1983 Report of Medical History shows
that he denied experiencing dizziness, shortness of breath,
chest pain or pressure, or heart palpitations. He also did
report experiencing high or low blood pressure. A physician
noted that the veteran had an isolated increase in his blood
pressure, not considered disabling (NCD). The
contemporaneous Report of Medical Examination indicates that
a clinical evaluation of the veteran's lungs, chest, heart,
and vascular system was normal. His blood pressure was
127/72. Both his
chest X-ray and EKG were within normal limits.
October 1988 and June 1989 Reports of Medical History show
the veteran denied experiencing dizziness, shortness of
breath, chest pain or pressure, high or low blood pressure,
or heart palpitations. The contemporaneous Report of Medical
Examination indicates that a clinical evaluation of his
lungs, chest, heart, and vascular system was normal. His
blood pressure was 118/80 and 120/84, respectively. His
chest X-ray and EKG were normal in 1988. A chest X-ray
was not performed in 1989, but his EKG again was normal.
In reporting his relevant medical history during a June 1990
medical evaluation in anticipation of retiring from active
duty, the veteran denied experiencing dizziness, shortness of
breath, chest pain or pressure, or heart palpitations. He
did report experiencing high or low blood pressure. The
evaluating physician noted the veteran had a history of a
single episode of high blood pressure, which did not require
treatment. The contemporaneous Report of Medical Examination
indicates that a clinical evaluation of his lungs, chest,
heart, and vascular system was normal. His blood pressure
was 128/68. Both his chest X-ray and EKG were normal.
The veteran's period of active duty service in the military
ended in August 1990.
March and April 1995 records from Trident Regional Medical
Center show the veteran was hospitalized several times for
unstable angina. Following a median sternotomy with coronary
exploration, the diagnoses were nonspecific chest pain and
hypertension. The records also indicate that previous
cardiac catheterizations showed a totally occluded left
anterior descending artery without evidence of
reconstitution, diagnosed as coronary artery disease with
anginal pectoris, but that subsequent testing found that his
angina was due to congenital hypoplasia of his left anterior
descending artery. His blood pressure was 124/82 and 126/76
in March 1995 and 140/80 in April 1995, with a normal EKG and
chest X-ray.
Records from S. E. Rawe, M.D., and G. H. Khoury, M.D., dated
in May 1995, indicate the veteran's blood pressure was
130/80.
VA medical records dated in July 1995 show the veteran was
diagnosed with chest pain, with coronary artery disease.
VA medical records dated from March 2002 through July 2003
indicate the veteran was treated for hypertension and
hypercholesterolemia with medication since March 2002. A
history of a June 2001 cardiac catheterization for a
congenital lower anterior descending artery, with unstable
angina, was also noted, as was a history of tobacco use and
obesity.
In March 2002 the veteran's blood pressure was 133/63, and in
December 2002 it was 144/91. A March 2002 treatment note
states the veteran's blood pressure was well controlled by
medication.
In March 2003, the veteran's blood pressure was 109/64. A
treatment note indicates he complained of daily substernal
chest pain and pressure, requiring rest and nitroglycerin.
Physical examination of his heart and lungs was normal.
The assessment was unstable angina secondary to a
congenitally small left anterior descending artery.
In July 2003, the veteran reported that he required up to 3
nitroglycerin tablets per day for his chest pain.
A July 2003 written statement from a fellow service member
indicates he was stationed with the veteran from September
1981 to March 1989. He said the veteran would have to be
relieved from duty for doctors appointments related to high
blood pressure.
The veteran also submitted a written statement in July 2003,
wherein he asserted that his blood pressure became high due
to stress after being transferred to a Naval Marine base in
Wisconsin, causing him to be released from duty and
reassigned to an office position. He also asserted that his
high blood pressure required daily monitoring.
May 2004 VA treatment notes related to left knee surgery
indicate the veteran's blood pressure was 123/61.
A May 2004 buddy statement from a fellow service member
states the veteran took medication for high blood pressure
during his 1983 to 1985 period of service with him.
As mentioned, the veteran was afforded a hearing before the
undersigned VLJ in May 2005. According to the transcript,
the veteran testified that he had intermittent high blood
pressure related to his chest pain. He also testified that
he began having problems with his blood pressure when he was
stationed in Florida, in 1983, such that he required daily
blood pressure monitoring. He stated that he was given shore
duty, as it was too stressful to be a chief engineer of the
diving boats, particularly as he could not be in the diving
chamber. He stated that his blood pressure was 156/100,
140/90, and 140/88 at that time. He also stated that his
medication for hypertension was just increased and that he
required nitroglycerin for the angina due to his heart
disorder. He further related that his heart disease,
a blockage of the left descending artery, was diagnosed in
1992 during open heart surgery at Trident Medical Center.
And he alleged that his treating physicians told him that his
fluctuating blood pressure caused the heart blockage.
Based on the medical and other evidence cited, the Board
finds that the preponderance of the evidence is against the
claim for service connection for hypertension. There is no
persuasive medical nexus evidence of record indicating or
otherwise suggesting the veteran has hypertension that was
incurred during or as a result of his military service.
See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Indeed,
there is medical evidence to the contrary. While his service
examination reports show an isolated episode of elevated
blood pressure, his remaining service medical records,
including his separation examination report, are negative for
complaints (e.g., relevant symptoms), a diagnosis, or
treatment of hypertension, and his blood pressure readings in
service were consistently within normal limits. See
38 C.F.R. § 3.303(b) (isolated findings are insufficient to
establish chronicity). See also 38 C.F.R. § 3.303(a)
(service connection requires that the facts
"affirmatively [show] inception or aggravation . . . .").
According to VA regulation, hypertension must be confirmed by
readings taken two or more times on at least three different
days and is defined as a diastolic blood pressure of
predominantly 90mm or greater and isolated systolic
hypertension means systolic blood pressure is predominantly
160mm or greater with diastolic pressure of less than 90mm.
See 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1). And to
have hypertension to a compensable degree (meaning at least
10-percent disabling), the veteran must have a diastolic
blood pressure predominantly 100 or more; or systolic
pressure predominantly 160 or more; or minimum evaluation for
an individual with a history of diastolic pressure
predominantly 100 or more who requires continuous medication
for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101.
Although the Board acknowledges the veteran has been treated
for hypertension, including with medication since his
discharge from military service, the symptoms and treatment
did not begin within the one-year presumptive period
following his discharge from the military in August 1990.
Moreover, his blood pressure readings since service -
especially within the one-year presumptive window, post
service, do not show that his blood pressure was elevated,
particularly such that he would be entitled to the minimum
compensable rating of 10 percent under Code 7101 to presume
that his hypertension initially manifested in service. See
Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A
veteran seeking disability benefits must establish . . . the
existence of a disability [and] a connection between the
veteran's service and the disability . . .").
And with regards to the veteran's claim of entitlement to
service connection for a heart disorder, service connection
also is not warranted for this condition. His service
medical records are entirely unremarkable for any complaints,
treatment, or diagnosis of a heart disorder. The report of
the physical examination he underwent for separation from the
military indicates he had unremarkable evaluations of his
heart. And of equal or even greater significance, his heart
disorder was not manifested or diagnosed until 1995. See
Savage, supra (requiring medical evidence of chronicity and
continuity of symptomatology after service).
In fact, the veteran's treating physicians since service have
conclusively attributed his current complaints of chest pain
(angina), etc., to a "congenital" defect, specifically, an
undersized small left anterior descending artery. Indeed,
their very use of the word "congenital" in describing this
condition is, itself, tantamount to saying it is unrelated to
his military service - but rather, hereditary. And because
congenital and developmental defects are not considered
diseases for purposes of VA disability compensation, they
cannot be service connected as a matter of law. See
38 C.F.R. §§ 3.303(c), 4.9. See, too, Sabonis v. Brown, 6
Vet. App. 426 (1994). The only possible exception is if
there is probative evidence of additional disability due to
aggravation by superimposed disease or injury. Here, though,
there is no such evidence. See Monroe v. Brown, 4 Vet. App.
513, 514-515 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245
(1995); VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90
(July 18, 1990); and VAOPGCPREC 11-99 (Sept. 2, 1999).
Furthermore, regarding the veteran's assertions that his
hypertension caused his heart disease, or at least was a
precipitating factor in the development of it, this very well
may be true. But even so, the mere fact that his
hypertension has not been medically determined to be
attributable to his military service unfortunately also means
that he cannot link his heart disease to his service - via
the hypertension. 38 C.F.R. § 3.310(a); Allen, 7 Vet. App.
at 448. That is to say, the elimination of one relationship
to service, as the supposed precipitant, necessarily also
eliminates all associated residual conditions. See Mercado-
Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order
for service connection for a particular disability to be
granted, a claimant must establish he or she has that
disability and that there is 'a relationship between the
disability and an injury or disease incurred in service
or some other manifestation of the disability during
service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548
(1992)).
While an accurate determination of etiology is not a
condition precedent to granting service connection, nor is
definite etiology or obvious etiology, there must at least be
a sufficiently definitive opinion on etiology to rise above
the level of pure equivocality. See Alemany v. Brown, 9 Vet.
App. 518, 519 (1996); Winsett v. West, 11 Vet. App. 420, 424
(1998). Unfortunately, in this particular case there is not.
As a layman, the veteran simply does not have the necessary
medical training and/or expertise to determine the cause of
his hypertension and heart disease. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992). See, too, Savage
v. Gober 10 Vet. App. at 495-498, indicating that, even in
situations of continuity of symptomatology after service,
there still must be medical evidence relating the current
conditions at issue to that symptomatology. Id. Because of
this, his allegations, alone, have no probative value without
medical evidence substantiating them. And the overwhelming
majority of the medical evidence in this case points to the
"congenital" defect as the root cause of the veteran's
hypertension and heart disease - not anything relating to
his service in the military. So these claims must be denied
because the preponderance of the evidence is unfavorable,
meaning there is no reasonable doubt to resolve in his favor.
38 C.F.R. § 3.102.
III. New and Material Evidence
Records show the veteran's claim for service connection for a
herniated lumbar disc was first considered and denied by the
RO in a May 1996 rating decision. The claim originally was
denied on the basis that this condition was not shown to have
been incurred or aggravated during service by the evidence
then of record. In denying the claim, the RO relied on
information contained in the veteran's service medical
records. These records showed that he sustained blunt force
trauma to his chest in 1971, but with no permanent residual
damage involving his spine in particular, as X-rays and tests
at that time were negative.
In addition, the veteran was treated in July 1976 for a
sudden onset of left-sided low back pain, with radiation down
into his left leg. He denied any lifting or injury, but
related a history of an earlier episode of low back pain 8
years prior. An X-ray showed decreased joint space at L5-S1,
but full range of motion. There was paraspinal spasm with
lateral bending. The impression was low back pain secondary
to acute lumbar sprain. A follow-up treatment note, dated in
August 1976, indicates he had mechanical low back pain, and
that a herniated nucleus pulposus (HNP) was doubtful.
In all subsequent Reports of Medical History, the veteran
denied experiencing recurrent back pain. And his subsequent
Reports of Medical Examination, including in connection with
his June 1990 military separation examination, showed that
clinical evaluations of his spine and musculoskeletal system
were normal.
The veteran's active duty military service ended in August
1990.
Private medical records from S. E. Rawe, M.D., Ph.D., dated
in May 1995, indicate that X-rays of the veteran's lumbar
spine showed moderate degenerative changes consistent with
his age. A subsequent CT scan showed six lumbar-type
vertebral bodies and spinal stenosis at L4-L5. Dr. Rawe
concluded the veteran had an L3-4 disc herniation over the L4
on the right side.
A July 1995 VA medical record indicates the veteran had a
history of a herniated disc, pending surgery.
The veteran filed his current petition to reopen this
previously denied claim in May 2003. The RO approached his
claim properly, as an issue off whether new and material
evidence had been received to reopen this previously denied
claim. And in the August 2003 decision being appealed, the
RO found that the evidence received since the prior denial
was new, but still not material, as the VA medical records
submitted in support of the claim did not show the veteran's
herniated lumbar disc was incurred or aggravated during his
military service.
The Board must address the issue of new and material evidence
in the first instance because it determines the Board's
jurisdiction to reach the underlying claim to adjudicate it
on a de novo basis. See Barnett v. Brown, 83 F.3d 1380,
1383-84 (Fed. Cir. 1996). See, too, Butler v. Brown, 9 Vet.
App. 167, 171 (1996). If the Board finds that no such
evidence has been submitted, then the analysis must end, and
the RO's determination in this regard becomes irrelevant, as
further analysis, beyond the evaluation of whether the
evidence submitted in the effort to reopen is
new and material, is neither required nor permitted. See
Barnett at 1383-1384.
Since the Board may find no new and material evidence even
where the RO found that there was such evidence, reopened the
veteran's claim, and adjudicated it on its merits, without
violating due process, any finding on the merits entered when
new and material evidence has not been submitted "is a legal
nullity." See Butler, 9 Vet. App at 171 (applying an
identical analysis to claims previously and finally denied,
whether by the Board or the RO). See also Jackson v.
Principi, 265 F. 3d 1366 (Fed. Cir. 2001) (the statutes make
clear that the Board has a jurisdictional responsibility to
consider whether it was proper for a claim to be reopened,
regardless of whether the previous action denying the claim
was appealed to the Board). Only if the Board determines
that new and material evidence has been submitted can the
Board reopen the claim and adjudicate it on the full merits.
As a general rule, within one year from the date of mailing
the notice of the RO's decision, a notice of disagreement
(NOD) must be filed in order to initiate an appeal of any
issue adjudicated by the RO. See 38 U.S.C.A. § 7105(a),
(b)(1). If an NOD is not filed within one year of notice of
the decision, the RO's determination becomes final and
binding on the veteran based on the evidence then of record.
See 38 U.S.C.A. § 7105(c). In addition, where the veteran
files an NOD, but fails to perfect his appeal within sixty
days of the date on which the statement of the case (SOC) was
mailed or within one year from the date of mailing the notice
of the decision (by filing a VA Form 9 or equivalent
statement), the RO's determination becomes final and binding
on him based on the evidence then of record. See 38 U.S.C.A.
§ 7105(d)(3) (West 2002); 38 C.F.R. §§ 20.204(b), 20.302(b),
20.1103. Once an RO's decision becomes final, absent
submission of new and material evidence, the claim may not be
reopened or readjudicated by the VA. See 38 U.S.C.A. § 5108.
In this particular case, the veteran did not file an NOD in
response to the RO's May 1996 rating decision denying his
claim. So that rating decision is final and binding on him
based on the evidence then of record, and is not subject to
revision on the same factual basis. See 38 U.S.C.A. § 5108;
38 C.F.R. §§ 3.104 (a), 3.156, 20.302, 20.1103. However, if
there is new and material evidence since that decision, the
claim must be reopened and the former disposition reviewed.
See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed. See
Justus v. Principi, 3 Vet. App. 510 (1992). But this
notwithstanding, the evidence must be both new and material.
That is to say, if the evidence is new, but not material, the
inquiry ends and the claim cannot be reopened. See Smith v.
West, 12 Vet. App. 312, 314 (1999).
The question of whether evidence is "new and material" is
determined under 38 C.F.R. § 3.156(a). The Board notes that
new regulations redefine what constitutes "new and material
evidence" and clarify the types of assistance VA will provide
to a claimant attempting to reopen a previously denied claim.
See 38 C.F.R. §§ 3.156(a), 3.159(c) (2005). These specific
provisions are applicable only to claims filed on or after
August 29, 2001. See 66 Fed. Reg. at 45,620. As the current
claim was filed after this date, the new version of the
regulation is applicable in this instance.
Under the revised version of 38 C.F.R. § 3.156(a), new
evidence is existing evidence not previously submitted to
agency decision-makers. Material evidence is existing
evidence that, by itself or when considered with the previous
evidence of record, relates to a fact, not previously
established, which is necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
final denial of the claim sought to be reopened, and must
raise a reasonable possibility of substantiating the claim.
See 38 C.F.R. § 3.156(a) (2005). If all of these tests are
satisfied, the claim must be reopened.
The additional evidence that has been submitted or otherwise
obtained since the RO's May 1996 rating decision consists of
VA medical records, several lay statements, and a transcript
of the veteran's hearing testimony before the undersigned VLJ
of the Board.
The VA medical records, which are dated from March 2002
through July 2003, show the veteran had a history of
degenerative joint disease in his knees and back. These
records also show he received transcutaneous electrical nerve
stimulation (TENS) for his back pain, that he has used a cane
to assist when walking, and that he underwent surgery
(laminectomy) for his herniated lumbar disc.
Two lay statements, submitted in May 2004, indicate that two
service members had military service with the veteran.
According to the letters, the veteran served with them from
1983-1985 and 1986-1989, respectively. The first letter
stated that he took medication for high blood pressure and
had back problems. The second letter discussed his
subsequent transfer to light duty due to back problems after
doing heavy lifting while working in the engine shop.
During his May 2005 hearing before the undersigned VLJ of the
Board, the veteran testified that his back problem began
during service after working in an engine room, where he
started experiencing back spasms, and that he was gradually
given light duty to eliminate heavy lifting for him. He
stated that he went on permanent light duty about two and a
half years prior to his retirement. He also testified that
he did not find out he had a herniated disc and bone spurs
until after he left the military, as he underwent a spinal
laminectomy and received a spinal cord stimulator (TENS) for
pain control. He further stated that he was told,
at retirement, that he had a stretched back muscle, which was
the cause of his back pain, but that he was not diagnosed
with the other back problems until he underwent his heart
surgery. In other testimony he acknowledged that none of his
treating physicians has ever written a statement relating the
cause of his back problems to his military service.
This additional evidence, since the RO's May 1996 decision,
does not provide a basis for reopening the claim because it
is not both new and material. Although the veteran's VA
medical records and the lay statements submitted on his
behalf, as well as the transcript of his hearing testimony,
are new, in that they were not previously of record, these
documents are not material because they do not address the
fundamental basis of the RO's May 1996 denial - that his
back disorder was not shown to have been incurred or
aggravated during his active military service. The records
submitted by him during the years since that 1996 decision
only refer to the evaluation and treatment, i.e., the current
diagnosis and severity, of his back disorder - which has
been diagnosed by his VA doctors as a herniated lumbar disc
and degenerative joint disease of the spine. See Morton v.
Principi, 3 Vet. App. 508 (1992) (per curiam) (medical
records describing the veteran's current condition are
immaterial to issue of service connection and are
insufficient to reopen claim for service connection based on
new and material evidence.). In short, these medical records
do not show a causal relationship between his service in the
military and any current symptomatology or diagnoses
referable to his low back. In fact, he testified during his
hearing that none of his treating physicians has issued an
opinion causally relating his current low back disorder to
his military service - including to any trauma that he may
have sustained during service. See Hickson v. West, 11
Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6,
11 (1996); Moray v. Brown, 5 Vet. App. 211, 214 (1993).
The Board is mindful of the veteran's arguments that he is
entitled to service connection because, although diagnosed
with a herniated lumbar disc after service, he was treated
for low back pain during and following service, thus perhaps
suggesting that it was incurred during his service. But
merely reiterating previously made arguments, without
independent verification of this, is insufficient grounds to
reopen the claim. Cf. Bostain v. West, 11 Vet. App. 124
(1998) (lay hearing testimony that is cumulative of previous
contentions considered by decision maker at time of prior
final disallowance of the claim is not new evidence). See
also Reid v. Derwinski, 2 Vet. App. 312 (1992).
Accordingly, the Board finds that the veteran has not
submitted new and material evidence to reopen his claim for
service connection for a herniated lumbar disc. And in the
absence of new and material evidence, the benefit-of-the-
doubt rule does not apply. See Annoni v. Brown, 5 Vet. App.
463, 467 (1993).
ORDER
Service connection for hypertension is denied.
Service connection for a heart disorder, as secondary to
hypertension, is denied.
The petition to reopen the claim for service connection for a
herniated lumbar disc is denied.
____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs